Hon'ble Ifaqat Ali Khan,J.
(Delivered by Hon'ble Ifaqat Ali Khan,J.)
1. Heard Sri Rahul Srivastava appearing for the State of U.P., Sri Nazrul Islam Jafri, Shri Raj Rishi Gupta and Shri Hare Ram Tripathi for learned counsel for the respondents.
2. This Government Appeal No. 2025 of 1988 (State Vs. Peera and Others) is filed by the State to set aside the judgment and order dated 11.05.1988 passed by Sessions Judge Sahjahanpur in Sessions Trial No. 118 of 1986 (State Vs. Peera and others) by this impugned judgment dated 11.05.1988 all the accused namely Peera, Mod. Ali and Asif were acquitted of the charges under Sections 307/34 IPC and 302/34 IPC. Respondent Mohd. Ali has expired during the pendency of this appeal.
3. This appeal is preferred against the impugned judgment on the grounds that order of acquittal is wholly erroneous and illegal against the weight of evidence on record. There was nothing suspicious about the FIR and the court below has erred in law by doubting the genuineness of F.I.R. Witness examined by prosecution are independent and reliable, contrary view taken by the Trial Court is erroneous. FIR was not Ante-time and the court's view is against the record, the court below has erred in law by holding that the defence version was more probable. Presence of witness on the spot was fully established and proved and the contrary view is erroneous. Motive of committing the murder of Rajendra was fully established and proved and contrary view taken by the Trial Court is against the record. There was nothing suspicious about inquest report and contrary view is erroneous. The defence version including the alleged alibi was an after thought. The court below has erred in law by holding the defence version more probable.
4. The prosecution case as disclosed by its evidence and FIR is that Raj Kumar is a nephew of complainant P.W. -1 Subedar and deceased Rajendra was the son of complainant Subedar at about 13 months before the present incident Shahid and Jamil had fired at Raj Kumar with an intention to murder him. In that incident Raj Kumar was injured and a case under section 307 IPC was proceeding in the court against Jamil and Shahid. In that case accused Peera, Mohd. Ali and Asif were doing paravi of accused Sahid. In this connection accused Peera, Mohd. Ali and Asif pressurized Raj Kumar not to give evidence against Shahid they also asked him to stop the witnesses of fact from giving evidence. Raj Kumar did not agree to this proposal, therefore, all the three accused became inimical with Raj Kumar and they went away intimidating Raj Kumar with dire consequences. On 29.10.1985 at about 3:00 P.M in Village Aithapur within the circle of Police Station Sehramau South, District Sahajahanpur when P.W.1 Subedar his deceased Son Rajendra, Nephew Raj Kumar, P.W.2 Bhagwan Baksh Singh, Brij Mohan, Ram Avtar and Janjali Ram were going to Village Aithapur in order to negotiate the sale of She-Bufallow belonging to Rajesh they were proceeding on kacchi patri of road on right side near village Aithapur at that place a truck coming from the side of Shahbad arrived and stopped there and accused/respondents Mohd. Ali armed with gun, accused Peera armed with country made pistol and accused Asif Ali armed with lathi got down from the truck. Accused Peera and Mod. Ali are the real brothers and accused Asif is their friend. Getting down from the truck all the three accused challenged Raj Kumar saying that they would not spare his life and they will not leave him to fight the case. Asif exerted accused Mohd. Ali and Peera to kill shot Raj Kumar accused/respondent Peera fired at Raj Kumar with his country made pistol but Raj Kuamr escaped. In the meantime deceased Rajendra challenged accused persons on it accused Mod. Ali fired with his gun at Rajendra, on being hit by gun shot Rajendra fell down on the ground, after it all the three accused got seated in truck and moved towards Sahajahanpur but none of the witness present there could not see the number of truck. Subedar entrusted his injured son Raj Kumar to his companions and he himself went to police station, at Bus Stand, Naresh another nephew of informer Subedar met him who on the dictation of Subedar scribed the FIR Naresh read it over to Subedar then he signed it and Subedar gave this FIR to constable Radha Ratan at police station Sehra Mau South in presence of S.I. Yogendra Singh P.W. 6Which is Ex. Ka-1 on the basis this FIR Constable Ratan Singh recorded Chick Ex. Ka-10 at 15.20 hours on the same day i.e. 29.10.85. Entry was also made in the G.D. Copy of which his Ex.Ka-11.
5. Investigation was given to S.I. Yogendra Singh P.W-6 who is the first I.O. in this case, he reached on the spot same day with copy of chick and sent the injured Rajendra for treatment through constable Narash Pratap Singh P.W. 5 along with majroobi letter Ex.Ka-8. Subedar also went to Hospital with his injured son. At that time I.O did not record the statement of Subedar but he recorded the statement of PW-2 Bhagwan Baksh Singh and other witnesses, he prepared the site plan Ex.Ka-12 and collected blood stained soil and plain soil from the place of occurrence and sealed them in two Tins separately and a memo Ex.ka-13 was prepared.
6. P.W.- 5 constable Naresh Pratap Singh took injured Rajendar along with Majroobi letter Ex.Ka-8 to the Hospital where concerned Doctor declared Rajendra dead, therefore, his injuries were not examined and constable Naresh along with majroobi letter came to the police station and an entry was made in G.D., the case was altered from section 307 IPC to section 307/302 IPC.
7. P.W.-4 S.I. Shishpal Singh posted at police station Kotwali district Sahajahanpur prepared the inquest report Ex.Ka-3 on 30.10.1985, he also prepared challan of the dead body Ex. Ka-4, the Diagram of the dead body Ex. Ka-5 sample of seal Ex.Ka-6, and letter to C.M.O. Ex.Ka- 7. The dead body was sealed by S.I. Shish Pal Singh and handed over to constables Parmeshwar and Ram Nerash Mishra.
8. The body of Rajendra was subjected to autopsy by Dr. Vinod Kumar Mishra P.W.-3 at 3.45 P.M on 30.10.1985. In his opinion the death took place about one day back, on the external examination he found following Ante-mortem injuries on the dead body of the deceased Rajendra.
(i) Multiple gunshot wound of entry on the right side front of chest 16CmX12Cm X Cavity deep 5Cm below the right clavicle each measuring 0.25 CmX0.25Cm.
(ii) Multiple gunshot wound of entry on right side front and upper arm in the area of 6CmX4Cm muscle deep each measuring 0.25 CmX0.25Cm.
(iii) Contusion 6CmX4Cm on posterior aspect of right side shoulder (back side).
9. On the external examination Dr. V.K. Mishra found that third, fourth and fifth ribs of deceased were fractured, two liters of blood was present in the chest cavity, in stomach about 200 gram semi digested food was present. From dead body 30 pellets of small size were taken out, out of which 24 pellets were in right chest cavity and 6 pellets were recovered from right arm, according to Doctor the death was caused due to shock and hemorrhage as a result of Ante-mortem gun shot injuries. Dr. V.K. Mishra also took a ring, amulet, one janeau, a pant, a baniyan, an underwear, a Kurta, of deceased in his custody.
10. When Rajendra died the case was altered into section 302 IPC. Investigation was handed over the S.O. Hemant Kumar Mishra P.W. 7, he recorded the statement of Subedar and other witnesses on 30.10.1985 on completing investigation S.O. H.K. Mishra, P.W. 7 submitted a charge sheet Ex. Ka- 14 against the three accused persons namely Peera, Mohd. Ali and Asif.
11. Charge under section 307/34 IPC and 302/34 IPC was framed.
12. All the three accused pleaded not guilty and demanded trial and submitted that they are falsely implicated in this case due to enmity accused Mohd. Ali raised a plea of alibi, he said that on 29.10.1985 he was giving the evidence before S.D.M. Shahbad District Hardoi, so he could not have been present on the spot.
13. Defence plea is taken by accused Peera in the written statement Ext. Kha 17. It is contended in defence that at about 2:20 p.m. on 29.10.85 he was traveling by bus no. USD 3993 from shahjahanpur to Shahabad. When the bus reached near village Aithapur then Raju, deceased Rajendra and their companions got bus stopped at the gun point and they started beating the passengers. Peera was also beaten up by Rajendra and their companions. Peera caught hold of the gun of Raju as Raju was going to shoot him. In the scuffle gun was fired and it hit Rajendar. Peera escaped from there. He went to District Lakhimpur kheri to the house of his sister, because the village of the Raju, Rajendar and Subedar was on the way of Peera would have gone to his home at Shahbad. Later accused Peera learnt that a case has been registered against him regarding the murder of Rajendra and so he surrendered himself in Court at shahjahanpur. The witnesses neither know him nor the accused Asif.
14. DW-5 Mohd. Yousuf Khan who is the driver of bus no. USD 3993 by which as per defence accused Peera was traveling from Sahjahanpur to Shahbad. DW-6 Ibarat and DW-7 Ahmad Sher Khan are the passengers who were also traveling in this bus no. USD 3993 at the time of occurrence. They are examined as defence witnesses. DW-5 Mohd Yousuf Khan has stated in his statement that on 29.10.1985 he was driving the bus no. USD 3993 from Sahjahanpur to Lucknow at about 3:00 P.M when the bus reached near village Aithapur then Raju resident of Sehramau and his 8 to 10 companions got the bus stopped Raju was having gun and his other companions were having lathi (Sticks). Raju pointing gun at him and asked to get down from the bus, so he got down from the bus and Raju took out the key of the bus. Raju asked him to stand on one side the conductor of bus also came down when the conductor asked what is the matter about then one of the companion of Raju hit the conductor by stick. Raju and his companions hurled abuses to them and to the passengers and asked the passengers to get down from the bus. One of the passenger Peera who is the accused in this case also got down from the bus when Peera objected then Raju and his companions started beating Peera when Raju was beating then the key of the bus slipped from his hand then Mhod. Yousuf Khan (DW-5) picked up the key and drove away the bus and stopped the bus at Sheramau police station and told to Darogaji about the occurrence. He and conductor of the bus did not got their injuries medically examined because they were not willing to indulge them self in this dispute because they had to pass from this road every day. He knew Raju very well he is a criminal and he used to extort the money from conductors of the buses he used to extort the money from conductor of his bus. DW-6 Ibarat and DW-7 Ahmad Sher were also traveling in this bus as passenger at the time of occurrence they have stated that when at 3:00 PM their bus reached near village Aithapur Raju got bus stopped and also got the driver down from the bus on the point of gun he has beated driver and conductor. Raju and his companions got all the passengers got down from the bus. Peera was also one of those passengers, Raju and his companions started beating Peera. In meanwhile driver drove away the bus from the spot and stopped the bus at police station. Afterward they heard noise of two fires. Here it is worth mention that DW-5 Mohd Yousuf Khan, DW-6 Ibarat and DW-7 Ahmad Sher Kha are the independent witnesses. There is no evidence on record to show that DW-5, DW-6 and DW-7 have any affinity with accused Peera or any enmity with Raju @ Raj Kumar. Thus, their evidence is reliable.
15. It was also denied by Peera that he bore any ill-will toward Subedar or Raju as Raju was a witness in a case under section 307 IPC against Jamill and Shahid. In fact, there were cross-case between Jamil and his father Lallu on one side and Masood Khan, an uncle of Peera, and other on the other side. So there was old enmity between accused Jamil and the family of Peera and there was no occasion for accused Peera ect. to do pairavi on behalf of Shahid and Jamil.
16. In support of its case, the prosecution has examined seven witnesses. Subedar P.W. 1 is an eye witness and the first informant. He is also father of deceased Rajendra. P.W. 2 Bhagwaan Bux Singh is also an eye witness of the incident. Dr. V.K. Misra P.W. 3 conducted autopsy on the dead body of Rajendra. S.I. Shishpal P.W. 4 had prepared inquest report and connected documents at the initial stages, the case was investigated by S.I. Yognedra Singh P.W. 6. The case was later on investigated by S.O. Hemant Kumar Mishra P.W. 7. P.W. 5 constable Naresh Pratap Singh is a forml witness. An affidavit Ext. ka-15 of constable Ram Naresh Shukla was also filed by the prosecution. It was he who along with constable parmeshwar chad was given custody of the dead body to take it to mortuary for conducting postmortem examination by Doctor.
17. Dr. A.P. Dixit, then posted as M.O. in District Hospital, Shahjahanpur was examined as C.W.1. He gave statement showing that at 4.15 p.m. on 29.10.85 the dead body of Rajendra Prasad Tiwari was brought to him by constable Naresh Pratap Singh about which he gave information to Inspector Incharge P.S.Kotwali, shahjahanpur. This information is Ext. C.1.
18. Constable Ram Bhajan was examined as C.W.2. He proved G.D, copy of which is Ext. C-2 which was prepared on the basis of Ext. C-1. The prosecution also filed a report of Chemical Examiner Ext. ka-16.
19. The accused persons have adduced the evidence in their defence. They examined as many as 11 defence witnesses. Dr. Ramesh Kumar D.W.1 had examined the injuries on the person of accused Peera on 6.11.85 at 11.00 a.m . When Pira was in judicial custody. He prepared injury report of Peera, copy of which is Ext. kha-1.
The following injuries were found on the person of accused Peera by DW-1.
1. Diffused traumatic swelling 10cm x 6cm over top of left shoulder.
2. Diffused multiple contusion in area of 10cm x 15cm over back of chest just below left shoulder blade.
3. Diffused traumatic swelling 6cm x 5 cm over lateral aspect of right upper arm 10cm above elbow joint.
4. Septic lacerated wound 2cm x ½ cm over anterior aspect right thumb.
5. Diffused traumatic swelling all over right palm.
6. Diffused traumatic swelling 10x 12 cm with contusion 6 x 2cm over front of right thigh.
20. On the basis of above evidence, learned Sessions Judge returned the judgment and order dated 11.05.1988 holding that the prosecution has not been able to prove its case against accused persons beyond reasonable doubt. It is not possible in this case to upheld the prosecution story. The defence version of the story appears to be quite probable. Thus the charges under section 307/34 IPC and 302/34 IPC leveled against accused persons Peera, Mohd. Ali and Asif Ali are not proved beyond reasonable doubt. So all the three accused/respondents are entitle to be acquitted of all the charges against them and learned Sessions Judge acquitted the accused/respondents Peera, Mohd. Ali, and Asif Ali from the charge under sections 307/34 IPC and 302/34 IPC.
21. Learned A.G.A. argued that in this case FIR was not Ante-time and per-contra view taken by the court below is against the record. We do not agree with this argument of Learned A.G.A. because the perusal of records shows that as per prosecution incident took place at 3:00 P.M., on 29.10.1985 the chick Ex.Ka-10 shows that the police station Sehra Mau South is 3 Kms away from the place of occurrence, chick also shows that FIR was lodged at 15.20 hours on the same day. Thus, it is clear version of the prosecution that the incident took place at 3:00 P.M and just within 20 minutes the FIR is lodged at the police station by the complainant Subedar. PW-1 Subedar in his statement has stated that after committing the incidence all the three accused seated in the truck and moved away after that he entrusted his son to his companions and went to police station. It is very much natural in this circumstance that the Subedar P.W. 1 being the father of the deceased would not have immediately rushed to the police station to lodged the FIR, first of all he must have seen his injured son and must have had some talks with the person who were present with him at that time and entrusted his injured son to them. It makes it clear that some time of the occurrence complainant Subedar must have departed from the place of occurrence for police station. As per prosecution on the way from the place of occurrence to police station he met his nephew Naresh at the bus-stand and he got the FIR scribed by Naresh at his dictation, it is also natural that when Subedar met Naresh at that time Subedar would have told about the occurrence to Naresh then Naresh would have arranged pen and paper to put down the F.I.R and thereafter Naresh would have written the FIR on the dictation of Subedar. Meaning thereby Naresh would have also taken some time before writing the FIR. Here it is also worth mentioned that FIR lodged by Subedar which is Ex. Ka-1 is a long narration of the fact and its dictation would have itself taken more than 20 minutes because this FIR is a long peace of narration covering about one full and a half page. After preparation of such a long FIR the informant could not have reached the police station by 3:20 P.M. In the FIR nowhere it is stated that how he reached the police station, neither in the F.I.R nor in his statement as P.W-1 Subedar has stated anything as to show how he reached the police station, whether he used any conveyance or not. It was P.W.-2 Bhagwan Baksh Singh who in his examination in chief has stated first time that after being fired Rajendra fell down and the accused persons departed from the place of occurrence after boarding the truck and in the meantime a motorcyclist arrived there from the side of Sahajahanpur, this Motor Cyclist was stopped by Subedar and went to police station by this motorcycle. Here it is worth mentioning that it is the result of after thought that P.W.-2 has introduced motorcycle, as conveyance when it was neither mentioned in the FIR nor in the statement of P.W.-1. Rather P.W.-1 has specifically stated that he went to police station all alone. On this evidence it is established beyond doubt that FIR lodged in this case is ante-time. Learned Sessions trial has also discussed the evidence on this points at length and with cogent reasons has held that FIR is ante-time, when the FIR is prove to be ante time then it had became clouded with the suspicion that it was prepared after appreciable delay and it was the product of undue deliberations and consultations. In the case of Kanhai Vs. State of U.P. 1986 Allahabad, CRL, Rulings (Vol X) Page 473 The Court has held that "once this doubt is entertained the FIR becomes clouded with suspicion that it was prepared after appreciate delay and that it was the product of undue deliberation and consultation and the FIR then loses its santity about disclosing untainted earliest version of the incident."
22. Here it is also worth mentioning that in this case neither the scribe of FIR Naresh nor the Head Constable concerned who prepared the chick are examined. In this case the FIR has became doubtful due to being ante time in such circumstances examination of scribed was necessary Hon'ble High Court of Orissa at Cuttack in Criminal Revision No. 80 of 1999 in Gokula Naik Vs. State of Orissa 2016 SCC OnLine Ori 819 has held that "No doubt, the non-examination of the scribe of the first information report cannot be a ground to doubt the prosecution case and it can at best be treated as mere irregularity which can be cured if it is otherwise proved but in the case in hand, when neither the scribe of the F.I.R. has been examined nor the F.I.R. has been otherwise proved, it reflects against the credibility of the prosecution case at the threshold." The facts of this Ruling are similar to the present case because in the present case also neither the scribe is examined nor the Head Constable concerned who prepared chick is examined and FIR is registered within 20 minutes of the occurrence which is not possible as discussed above. In this case the examination of Naresh was necessary to show that where and at what time he scribe FIR and how much time was taken by him in scribing the FIR. So in this case non examination of scribe Naresh reflects against credibility of the prosecution case.
23. Learned A.G.A. advanced the next argument that the witnesses examined by the prosecution were independent and reliable and the contrary view taken by the Lower Court is erroneous, we disagree with this contention of the Learned A.G.A. because the Learned Sessions Court has upheld with a detailed discussion and cogent reasons that presence of P.W.-1 Subedar on the place of occurrence is doubt full and P.W.-2 Bhagwan Baksh Singh is chance witness as well as the interested witnesses.
24. So far as the doubt on the presence of P.W-1 Subedar on the spot is concerned it is the prosecution case, that after the occurrence leaving his son Rajendra on spot who sustained the gun shot injury, complainant went to lodged the FIR at police station entrusting Rajendra to his companions. It is most unnatural if the P.W.-1 Subedar would have been present on the spot then first of all he must have rushed to the Hospital taking his son to save his life, lodging of FIR could have been done by any other companion he could have sent any of his companions to the police station for lodging the FIR because the saving of life of the injured was much more important for a father than to lodging of the FIR. It is also relevant that as per prosecution Raj Kumar the nephew of complainant, Brij Mohan, Bhagwan Baksh Singh who is Amin and Janjali Ram were also present with the complainant on the spot then it was obvious that he should have dictated his F.I.R for scribing to any of his companions specially Bhawan Baksh Singh who is an educated person. Scribing of F.I.R by Naresh at bus stand who met complainant by chance itself create a serious doubt about the presence of complainant on the spot. It is also worth mentioning that if the complainant would have been present at the time of occurrence and he would have immediately gone to police station where PW-6 first I.O. S.I. Yogendra Singh met him, then I.O. Sub Inspector Yogendra Singh must have recorded the statement of complainant Subedar. As per prosecution near about 4:00 P.M Subedar came back to place of occurrence S.I. Yogendra Singh has also reached there by that time but at the place of occurrence also PW-6 Yogendra Singh did not record the statement of complainant Subedar, whereas he recorded the statement of other witnesses present on the spot. The excuse of not recording the statement of Subedar on the spot is given by PW-6 that because Subedar was willing to take his son to the hospital. Therefore, he did not record the statement of complainant on spot. In our opinion it is a lame excuse if Subedar could have understand the emergency then just after the occurrence he should have taking to his son to the hospital and he should not have rushed to police station first. Non-examination of Subedar by I.O. Yogendra Singh PW-6 at police station as well as on the spot also shows that complainant Subedar was not present on the place of occurrence. Hon'ble Supreme Court in Shahid Khan Vs. State of Rajasthan 2016 (4) SCC 96 has held that "The delay in recording the statements casts a serious doubt about their being eye-witnesses to the occurrence."
25. In his statement PW-1 Subedar has admitted that he could not see the truck no. by which the accused/respondents arrived at place of occurrence, he also could not notice the colour and particular (huliya) of the truck. In his statement he has said that he cannot even say that truck was a full body truck or a half body truck. These facts shows that learned Sessions Trial has rightly held that the presence of PW-1 Subedar is highly doubtful on the place of occurrence.
26. So far this finding of learned Sessions Trial is concerned that PW-2 Bhagwan Baksh Singh is an interested and chance witness and his statement is not reliable. We concur with this finding of learned Sessions Judge. In the F.I.R it is mentioned that PW-2 Bhagwan Baksh Singh is a resident of village Raura, police station Sehra Mau South in examination in chief PW-2 Bhagwan Baksh Singh has stated that he was coming out of his home in his cross examination he has admitted that he has house in Sahjahanpur and he was going there, meaning thereby as per PW-2 Bhagwan Baksh Singh he was going from Raura to Sahjahanpur and on the way at Sehra Mau bus stand he met Subedar. Subedar who was going to village Aithapur to purchase she buffalow Jangali Ram, Rajendra, Brijmohan, Raju and Ram Avtar were also going with Subedar, they asked him to accompany them to village Aithapur so he also went with them and near about 150 steps before village Aithapur this occurrence took place, PW-2 Bhagwan Baksh Singh is neither the resident of village Aithapur nor he had any business to do there. Under such circumstances trial court has rightly held PW-2 Bhagwan Baksh Singh a chance witness Hon'ble Supreme Court in Baby @ Sebastian and Another Vs. Circle Inspector of Police, Adimaly (2016) 13 Supreme Court Cases 333 has held that "The evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence."
27. So far credibility of statement of PW-2 Bhagwan Baksh Singh is concerned he has stated that he could not see the number of truck and he did not even remember the colour of truck if he would have seen the occurrence then he would have certainly noticed the colour of truck and number because he is an educated person and working as Amin (Government Servant).
28. Secondly PW-2 Bhagwan Baksh Singh in his statement has admitted that accused were already known to him and he used to converse with them but he did not know the age of accused persons about Mohd. Ali this witness has stated that he was strong built his complexion is neither much fair nor much dark. He cannot say that his hair are curly or plain. He cannot tell that his eyes are black or sharbati, regarding this statement of PW-2 Bhagwan Baksh Singh court has given the observation that Mohd. Ali is a person of heavy body his complexion is dark his eyes are black. About accused Peera this witness has stated that the complexion of Peera is more dark then Mohd. Ali but the trial court has observed that complexion of Peera is fairer than Mohd Ali. These facts shows that the statement of PW-2 Bhagwan Baksh Singh is not reliable. There are so many contradiction in the statement of PW-1 Subedar and PW-2 Bhagwan Baksh Singh which creates the credibility of statement of PW-2 Bhagwan Baksh Singh doubtful. PW-1 Subedar in his statement has stated that truck stopped 25 to 30 steps away from them, whereas PW-2 Bhagwan Baksh Singh says that truck stopped 100 to 150 steps away from them. Secondly PW-1 Subedar in his statement states that he went to police station to lodge the F.I.R from the place of occurrence all alone, whereas PW-2 Bhagwan Baksh Singh says that PW-1 Subedar got stopped a motorcyclist and went to police station by the motorcycle and most important fact is that the deceased Rajendra is the son of Balak Ram brother of complainant Subedar. PW-2 Bhagwan Baksh Singh in his statement has stated that he is Amin and Balak Ram brother of Subedar is his peon. These facts establishes that PW-2 Bhagwan Baksh Singh is a chance witness as well as an interested witness.
29. As per F.I.R accused persons have enmity with Raju @ Raj Kumar they were pressurizing him not given the evidence against accused Shahid when accused/respondents reached at the place of occurrence then Peera opened the fire on Raju @ Raj Kumar but he escaped thus Raju @ Raj Kumar was star witness in this case specially in the circumstances where the presence of PW-1 Subedar on the spot has become doubtful and PW-2 Bhagwan Baksh Singh is a interested and a chance witness. Raju @ Raj Kumar could have tell about the occurrence as well as about the motive and his enmity with accused/respondent in better way, prosecution has withheld the best evidence that is the examination of Raju in the court without any reason. Non examination of Raju @ Raj Kumar as prosecution witness adversely effects the prosecution case.
30. Learned A.G.A submitted that in this case motive is proved by prosecution contrary, version recorded by Session Trial in the judgment is against record. The Sessions Trial has held that motive as set up by prosecution has not been satisfactorily established because on 07.10.1985 a cross case were registered at P.S. Sahabad District Hardoi one at the instance of Lallu father of Jamil and other at the instance of Masood Khan uncle of accused Peera and Mohd. Ali, the report of Masood Khan was against Lallu and Khalil as there was enmity between Jamil and Peera and Mohd. Ali then why Peera and Mohd. Ali will pressurized Raju @ Raj Kumar not to give evidence against Jamil and Sahid.
31. In our opinion this findings of Sessions Trial that motive as set up by the prosecution has not been satisfactorily established due to enmity between Jamil and Peera and Mohd. Ali is not good because it is not the prosecutions case that Mohd. Ali and Peera were pressurizing Raju @ Raj Kumar not to give evidence against Jamil, but in the clear words it is the case of prosecution that Mohd. Ali and Peera were pressurizing Raju not to give the evidence against Shahid and there is no enmity between Mohd. Ali, Peera and Sahid but on the fact of motive one point is most relevant that as per prosecution case Jamil and Shahid has fired on Raju @ Raj Kumar 13 months before this occurrence and they were pressurizing Raju @ Raju Kumar not to give the evidence against Shahid and due to this motive on 29.10.1985 this occurrence took place. Meaning thereby in respect of motive Raju @ Raj Kumar was the most important witness but he is not examined without any reason. In our opinion prosecution has failed to prove the motive due to withholding the best evidence of Raju @ Raj Kumar which the prosecution did not examine and only statement of PW-1 Subedar is not sufficient to prove motive specially in the case where accused Peera and Mohd. Ali in their statement under section 313 Cr.P.C has denied this fact of enmity with Raju @ Raj Kumar.
32. Learned A.G.A submitted that accused Peera did not receive any injury, as such hence the prosecution is not bound to explain his injuries. DW-1 Dr. Ramesh Kumar who has examined the injuries of Peera has proved that six injuries were found on the body of Peera and he also stated that it is probable that these injuries would have caused to Peera at 3:00 P.M. on 29.10.1985. Under such circumstances in our opinion non explanation of injuries of accused Peera by prosecution causes the prosecution case doubtful as Hon'ble Supreme Court case in Bishan @ Bhiswadeb Mahato and Others Vs. State of W.B. (2005) 12 Supreme Court Cases 657 has held that " The non-explanation of injuries of the accused is one of the factors that could be taken into account in evaluating the prosecution evidence and the intrinsic wroth of the defence version." and Hon'ble Supreme Court in Raj Pal and Another Vs. State of Haryana (2007) 13 Supreme Court Cases 554 has held that " While there is no absolute rule that merely because the prosecution has failed to explain the injuries on the accused ipso facto the prosecution case should be thrown out, the non-explanation of the injuries on the accused is certainly an important circumstance which has to be taken into consideration by the court in deciding whether the benefit of doubt should go to the accused. In Bishna case the entire law on the point has been discussed in great detail." Thus, the non explanation of injuries of Peera by prosecution effects the prosecution case adversely.
33. Learned A.G.A argued this point very strongly that as per prosecution, at the place of occurrence two fires were opened one by country made pistol by Peera aiming on Raju from which Raju escaped and second fire was opened by Mohd. Ali by his gun on Rajendra. Whereas the defence version is that Raju was going to open the fire on Peera then Peera caught hold of Raju and in scuffle country made pistol which Raju was having fired which hit Rajendra. Thus, as per defence only one fire was opened on spot. DW-5 Mohd. Yousuf Khan, DW-6 Ibarat and DW-7 Ahmad Sher Khan in their statements have stated that when Mohd. Yousuf Khan drove away the bus from the spot then after some time they heard the noise of two fires. This facts supports the version of prosecution and falsify the defence version. We do not agree with this argument of learned A.G.A because it is not a important fact because as par accused Peera when the fire of country made pistol of Raju hit at Rajendra then he left the place of occurrence out of fear and went to Lakhimpur. This is very much possible that second fire would have been opened by some one after the departure of Peera from the place of occurrence, if the Peera could not hear the noise of second fire it is not of much material and does not effect the defence version adversely because it is not possible for the witness to see and notice the each and every part of occurrence.
34. Learned A.G.A advanced his next argument that learned court has erred to hold that the defence version is more probable we disagree with this argument of learned A.G.A. Learned Sessions Judge has not held the defence version is more probable but on internal page number 31 of the impugned judgment learned Sessions Judge has held that "the defence version of the story which appears to be quite possible". Learned Sessions Judge has discussed the evidence of prosecution as well as the evidence of defence at length.
35. Learned A.G.A. submitted that plea of alibi taken by Mohd. Ali that on 29.10.1985 he was in the court of S.D.M. and moved an application in the court of S.D.M. at 3:05 pm and swear the affidavit, is an afterthought. We disagree with this argument of learned A.G.A. because DW-9 S.D.M. Sahabad has stated that on 29.10.1985 application was moved in his court showing the name of applicant as Mohd. Ali and DW- 11 Anil Kumar Srivastava Advocate has stated on oath that on 29.10.1985 in his presence on 3:10 PM in Tehasil Shahbad Mohd. Ali swear and verified the affidavit and this affidavit bears his signature as well as the signature of Mohd. Ali. Mohd. Ali signed the affidavit in his presence. PW-9 and PW-11 are the independent witnesses and there is no reason to disbelieve them.
36. Learned A.G.A. submitted that the inquest report is not suspicious contrary view taken by the court is erroneous, we disagree with this argument of learned A.G.A because learned Sessions Judge discussed that crime number is not mentioned on inquest report as well as there are several cuttings and over writings in the inquest report. PW-4 S.I. Shish Pal Singh has given an explanation which is discussed by trial court in his judgment at page no. 23 has held that "he did not note crime number on the inquest report because at that time he was not possessed of FIR or Majroobi letter. But about the aforesaid over writings in the inquest report Ext. Ka- 3 and chalan lash Ext. Ka-4 remained unexplained. It is also noticeable that Brijmohan son of Vir Bahadur who is nephew of Subedar PW-1 and who was an eye witness of the incident, according to the prosecution, was one of the Panches of the inquest report. The report Ex. Ka-3 bears his signature. But even then there is no mention of the name of the accused persons or the brief particulars of the incident in the inquest report." Here it is also worth mention that in annexure of inquest report rapat it is mentioned that rapat is in one page whereas rapat in 2 pages. It shows that even written complaint/chick F.I.R was not available at the time of the preparation of inquest report. Thus, the trial court has rightly taken the view that inquest report is doubtful.
37. Prosecutions case is unnatural on this point also that as per prosecution Raju @ Raj Kumar was the intended victim. Accused came on the place of occurrence to murder Raju @ Raj Kumar and Peera open the fire with country made pistol on Raju @ Raju Kumar from which he escaped then Rajendra came forward and challenged the accused persons then accused Mohd. Ali fired with his gun on Rajendra and accused went back. Why accused persons did not fire on Raju @ Raj Kumar again while the prosecution case is that Peera was having country made pistol, Mohd. Ali was having gun and Mohd. Asif was having lathi and complainant Subedar and his companions were arm less.
38. In this case it is relevant that the conduct of complainant is unnatural and F.I.R is ante time Hon'ble Supreme Court in Sudarshan and Another Vs. State of Maharashtra (2014) 12 Supreme Court Cases 312 has held that "The unnatural behavior of the complainant in approaching Advocate Rangari and lodging the FIR at Chandrapur and also convinced that FIR appears to be ante-timed. As discussed in detail hereinafter, according to us, these facts are sufficient to hold that the appellants may have been roped in falsely at a later point of time, which entitles them to be given the benefit of doubt".
39. Hon'ble Supreme Court in Ganesh Bhavan Patel and Another Vs. State of Maharashtra AIR 1979 SC 135 2 SCR 94: (1978) 4 SCC 371: (1979) CriLJ SC 51 has held that "Where two reasonable conclusion can be drawn on the evidence on record, the High Court should, as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the Court below. In other words, if the main grounds on which the Court below has based its order acquitting the accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal."
40. On the basis of above discussion we come to this conclusion that by any stretch of imagination it cannot be said that the view taken by the Sessions trial is not a possible or plausible view. There is no illegality and perversity in the impugned judgment. This judgment is well discussed and based on cogent reasons and no ground of indulgence in the impugned judgment is made out. Hence, this appeal is liable to be dismissed.
41. The Government Appeal No. 2025 of 1988 (State Vs. Peera and Others) filed by the State to set aside the judgment and order dated 11.05.1988 passed by Sessions Judge Sahjahanpur in Sessions Trial No. 118 of 1986, under Sections 307/34 IPC and 302/34 IPC is rejected.
42. Judgment and order dated 11.05.1988 passed by Sessions Judge Sahjahanpur in Sessions Trial No. 118 of 1986 (State Vs. Peera and Others), under Sections 307/34 IPC and 302/34 IPC, P.S. Sehramau (South) is affirmed.
43. Lower Court record be sent back to the court concerned alongwith the copy of the order of this court for compliance.
Order Date :-20.8.2018 Vikram